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2003(6) Supreme 484
SUPREME COURT OF INDIA
(From Gujarat High Court)
S. Rajendra Babu & G.P. Mathur, JJ.
State of Gujarat -Appellant
versus
Salimbhai Abdulgaffar Shaikh & Ors. -Respondents
Criminal Appeal Nos. 888-891 of 2003
Decided on 8-9-2003
Counsel for the Parties :
For the Appellant : H.N. Salve and Sushil Kumar, Sr. Advocates, Kamal Trivedi A.A.G., Gujarat and Ms. Hemantika Wahi, Advocate.
For the Respondents : A. Sharan, Sr. Advocate, Mushtaq Ahmad, Amit Kumar, Mrs. P. Sinha, S.A. Khan, Amit Anand Tiwari, Iqbal Hussain and Ms. Madhu Saran Advocates.
Held : In view of express language used in sub-section (1) of Section 34 of POTA the appeal would lie both on facts and on law. Therefore even an order granting bail can be examined on merits by the High Court without any kind of fetters on its powers and it can come to an independent conclusion whether the accused deserves to be released on bail on the merits of the case. The considerations which are generally relevant in the matter of cancellation of bail under sub-section (2) of Section 439 of the Code will not come in the way of the High Court in setting aside an order of the Special Court granting bail. It is therefore evident that the provisions of POTA are in clear contradistinction with that of Code of Criminal Procedure where no appeal is provided against an order granting bail. The appeal can lie only against an order of the Special Court and unless there is an order of the Special Court refusing bail, the accused will have no right to file an appeal before the High Court praying for grant of bail to them. Existence of an order of the Special Court is, therefore, sine qua non for approaching the High Court. (Para 9)
Further held : In the present case, the respondents did not chose to apply for bail before the Special Court for offences under POTA and consequently there was no order of refusal of bail for offences under the said Act. The learned Single Judge exercising powers under Section 439 read with Section 482 Cr.P.C. granted them bail. The order of the High Court is clearly without jurisdiction as under the scheme of the Act the accused can only file an appeal against an order of refusal of bail passed by the Special Court before a Division Bench of the High Court and, therefore, the order under challenge cannot be sustained and has to be set aside. (Para 13)
(ii) Criminal Procedure Code, 1973-Section 439-Grant of bail in non-bailable offence-Consideration to weigh.
Held : The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) AIR 1978 SC 179 and basically they are - the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of withnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. (Para 7)
(iii) Constitution of India-Articles 134A and 134(1)(c)-Certificate granted by High Court in the matter of grant of bail to respondents-Objection to maintainability of appeal-Order made in an application for grant of bail is neither judgment nor final order or sentence-Certificate could not have been granted and appeal was incompetent but appeal treated as proceeding arising under Article 136 of the Constitution. (Paras 2 and 3)
JUDGMENT
G.P. Mathur, J.-These appeals arise on a certificate granted by the Gujarat High Court under Article 134A read with Article 134(1)(c) of the Constitution in the matter of grant of bail to the respondents.
2. Raising a preliminary objection, Shri Amarendera Sharan, learned Senior Advocate, submitted that an appeal will lie to this Court from any judgment, final order or sentence in a criminal proceeding of a High Court on a certificate being granted in terms of Article 134(1)(c) and 134A of the Constitution; that, an order made in a proceeding arising out of an application for grant of bail is not a judgment, final order or sentence; that, a judgment would mean any decision which terminates a criminal proceeding pending before the Court and excludes an interlocutory order; that, in a criminal proceeding an order on an application for bail is not a final order; that, the order in question is neither a final order nor imposes a sentence; that, therefore, the certificate issued by the High Court should be cancelled and the appeal should be treated as incompetent.
3. There seems to be force in the contentions urged by the learned Senior Advocate on behalf of the respondents but the settled practice of this Court is that if on the face of it this Court is satisfied that the High Court has not properly exercised the discretion under Article 134(1)(c), the matter may either be remitted or this Court may exercise that discretion itself or treat the appeal as one under Article 136 (Nar Singh v. State of U.P., 1955 (1) SCR 238, and Baladin v. State of U.P., AIR 1956 SC 181). Therefore, we do not propose to examine this aspect of the matter any further but treat this appeal as a proceeding arising under Article 136 of the Constitution.
Leave granted.
4. A ghastly incident took place at about 7.45 a.m. on 27.2.2002 when the Sabarmati Express was stopped near Godhra Railway Station and a coach was set on fire resulting in death of 59 persons and serious injuries to 48 others. An FIR was lodged on the basis of which a case was registered as CR No. I-09 of 2002 under Sections 143, 147, 148, 149, 337, 338, 435, 120-B, 34, 153(A), 302, 307 IPC, Sections 141, 151, 152 Indian Railways Act, Sections 3 and 4 of Prevention of Damage to Public Property Act and Section 135(1) of the Bombay Police Act. After investigation, charge sheets were submitted against the accused involved in the case but it was specifically mentioned therein that investigation was still continuing. The respondents who are accused in the case moved separate bail applications which were rejected by the Additional Sessions Judge, Panchmahals at Godhra on different dates between 18th and 30th January, 2003. Thereafter bail applications under Section 439 Cr.P.C. were filed before the High Court. On the basis of the facts revealed as a result of further investigation, the prosecution came to the conclusion that offences under Section 3(2) and (3) and Section 4 of the Prevention of Terrorism Act (for short POTA ) had also been committed and accordingly took appropriate steps for including the aforesaid offence. A counter-affidavit was filed on behalf of the State on 5.3.2003 before the High Court wherein it was averred that after filing of the charge sheets, further evidence had been collected which revealed commission of offences under Sections 3 and 4 of POTA and applications had already been moved on 19.2.2003 in the Court of Additional Sessions Judge and JMFC (Railway Court) Godhra for adding Sections 3(2) and (3) and Section 4 of POTA to the main charge sheet dated 22.5.2002 as well as the supplementary charge sheets dated 20.9.2002 and 19.12.2002. The accused who were in judicial custody were also informed about the aforesaid development that POTA had been applied against them. It was pleaded in the counter affidavit that the accused-respondents should first approach the Special Court for grant of bail under POTA and they could approach the High Court only after decision of
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